Myths about tenancy law persist. But do landlords really have to accept a third prospective tenant, and are walls allowed to be painted black?
If they were to compile a ranking of the most common misconceptions about tenancy law, even seasoned experts would likely struggle. Especially when it comes to rights and obligations towards neighbors and landlords, Germans still have their own unique understanding of law and justice. Many rumors, half-truths, and misconceptions have persisted stubbornly for decades. One reason for this may be the sheer volume of court rulings; the Federal Court of Justice has shaped German tenancy law more than the legislature for years.
Utility costs, calculating living space, rent reductions – all these issues regularly occupy the judges in Karlsruhe. Questions surrounding renovation obligations remain at the top of the list of rulings. The German Tenants' Association estimates that two-thirds of all clauses concerning cosmetic repairs are invalid. And yet, misconceptions persist.
1. New tenants create freedom
The unfamiliar city beckons, the new place is already finished and ready. Nothing stands in the way of the move – if it weren't for the notice period for the old apartment. The average tenant believes they are well-informed and knows: "Anyone who provides their landlord with three replacement tenants can terminate the lease without notice."
There's just one catch: Even though the "three-substitute-tenant rule" is almost common knowledge – it doesn't exist and never has! Even if the tenant presents three potential tenants, the landlord is not obligated to agree to a termination of the lease without observing the usual notice periods.
"Contracts must be honored" – an old legal principle. This applies especially to fixed-term contracts in which the tenant has committed to renting the apartment for a specific period (one, two, or four years) or has waived their right to terminate the lease for a specific period. Only with the landlord's consent can the tenant terminate the contract earlier.
Hope for greater flexibility exists only in the following exceptional cases:
The replacement tenant clause is explicitly included in the contract. In that case, the landlord must adhere to it. If the tenant invokes hardship, such as serious illness, a job-related relocation, or an increase in family size, the right to early termination of the long-term tenancy may exist if the tenant provides an acceptable replacement tenant. This is provided that the replacement tenant enters into the contract without any desired changes (principle of good faith, Section 242 of the German Civil Code, BGB)
2. Subletting is generally prohibited
This statement is incorrect. In many cases, the landlord cannot prohibit at least partial subletting. A distinction must be made between whether the main tenant sublets the entire apartment or only a part of it, for example, to form a shared flat. While the desire for a new roommate cannot be fulfilled entirely without formalities, anyone wishing to sublet must ask the landlord for permission, as stipulated in Section 540 of the German Civil Code (BGB). If the tenant remains in the apartment, the landlord must grant permission if the tenant has a legitimate interest in the addition of a roommate (Section 553 BGB).
For example, the tenant no longer wants to live alone or is experiencing financial difficulties. In these cases, the landlord can only refuse consent if the shared occupancy by the partner or their family is unreasonable. The landlord is not obligated to accept overcrowding. A tenant is always permitted to accommodate a spouse or partner.
If a tenant completely sublets their apartment to a third party, the landlord has the right to object. If the tenant relocates their primary residence, this is not considered legally permissible subletting. The landlord is not obligated to accept a stranger as the subtenant. If the landlord discovers the subletting, the tenant risks immediate eviction. Furthermore, even if the subtenant has long since moved to another city, the original tenant remains obligated to pay the rent on time each month. Therefore, if the subtenant is negligent with their payment, the original tenant is liable. To avoid financial loss, the landlord's only recourse is to sue for the rent, if necessary.
3. Landlords need a spare key
What a surprise: After jogging, the tenant is in the shower – and the landlord is in the living room. "Just wanted to quickly check something, I thought you weren't home," he stammers sheepishly, holding a spare key. The landlord has no right to a spare key, nor to unauthorized access to the apartment. If the landlord stipulates otherwise in the contract, he may not enter the premises without permission. If he does, it can be considered trespassing. The tenant has the right to terminate the lease without notice. He can then also have a new lock installed at the landlord's expense.
An exception applies in emergencies: if the tenant is away and has not informed the landlord about the owner of a spare key, the landlord may enter the apartment if, for example, the water pipe is leaking or a cable fire is smoldering in the tenant's apartment ("imminent danger")
4. One celebration per month is allowed
The right to party is one of the most common misconceptions among neighbors. Loud parties are not permitted once, three times a year, and certainly not once a month. At all parties, barbecues, and football nights, tenants must be considerate of their neighbors. This includes observing quiet hours after 10 p.m. – especially outdoors. If the party continues quietly indoors, neighbors cannot object. However, if a tenant violates these rules, they can complain to the landlord, who in turn is entitled to issue a warning. If annoyed residents in the building reduce their rent due to persistent noise disturbances, the noisy neighbor is liable for the lost rent.
By the way: Showering at night is not considered disturbing the peace. Apartment buildings must be soundproofed so that neighbors aren't disturbed when someone uses the toilet or takes a midnight shower. However, if the building is known to be poorly soundproofed, neighbors should be considerate. Incidentally, prolonged showering and running the washing machine at night are among the most common annoyances between neighbors.
5. Tenants can also offset payments
The move to the new apartment is imminent, the financial burden is high – and the temptation is great to minimize the cost pressure with a small – supposedly legal – trick. "I'm not paying any more rent. Let him take it from the security deposit." – Anyone who acts according to this principle can quickly find themselves in a lot of trouble. The landlord is entitled to the rent until the last day of the tenancy; offsetting it against the security deposit is not permitted.
If the tenant fails to pay, landlords who are prudent will involve the courts and send a payment order. If the tenant does not respond within two weeks, a visit from the bailiff is even threatened.
It is also a widespread misconception that tenants are entitled to claim interest on their security deposit during the year. This is incorrect! Interest is part of the security deposit; both serve as security for the landlord. It does not have to be paid out beforehand (§ 551 Paragraph 3 Sentence 4 of the German Civil Code). If the landlord has claims against the tenant, they can also retain the interest. If everything goes smoothly, tenants receive their security deposit plus interest back after moving out.
6. The owner always pays the taxes
For most tenants, the annual statement of additional costs, also known as the operating cost statement, is anything but welcome. Despite monthly advance payments, the landlord demands additional payment. It's no wonder that savvy tenants diligently check the bill for any inaccuracies.
The German Tenants' Association reports that every second statement of additional costs in Germany contains errors. While malicious intent can't always be assumed, landlords often lack sufficient knowledge.
However, this is equally true for many tenants. It's easy to quickly cut insurance and property tax – but this is unjustified. Property and liability insurance for the rental building and property tax can be passed on to the tenants by the landlord if this is stipulated in the rental agreement – which usually refers to the German Operating Costs Ordinance (Betriebskostenverordnung, § 556 BGB).
7. If the measurements are incorrect, the rent will be reduced
Few prospective tenants bring a tape measure and ruler to the first viewing. However, if a discrepancy between the actual living space and the stated area becomes apparent after the lease is signed, tenants often feel cheated. "I'll reduce the rent," many think, and simply pay less without seeking advice.
The right to a rent reduction is subject to strict requirements. The size of the apartment must deviate by at least ten percent for a reduction to be legally valid (Federal Court of Justice ruling, case no. VIII ZR 133/03). If a 120-square-meter apartment is missing ten square meters, this would likely still be within acceptable limits.
However, tenants must also pay attention to the calculation method: If the lease specifies a different method for calculating living space than the standard method, the tenant cannot reduce the rent due to a discrepancy in the area resulting from the calculation using the standard method. "If the gallery level with a sloping roof is agreed upon in the lease as full living space, the tenant cannot claim a rent reduction.".
8. Rental agreements can also be revoked
Some tenants believe they can still withdraw from a signed lease if they act quickly enough, or they think they can be released from the tenancy at any time. However, there is no legal basis for this view. Even the ancient Romans knew a principle that still permeates German law today: Pacta sunt servanda – agreements must be kept. Anyone who regrets hastily signing a lease must generally adhere to the notice periods: "Notice of termination is permissible no later than the third working day of a calendar month for the end of the following month." (§ 573c BGB). If the landlord is understanding, tenants can be released from the contract earlier with their consent. To be on the safe side, tenants should insist on a written termination agreement that specifies the end of the tenancy.
9. Whoever moves out no longer pays rent
Newly in love, the couple moved into the apartment, but after three years she packed her things again. "I have nothing more to do with the apartment," she thought. Wrong!
If both signed the lease, they remain responsible for the apartment even after a separation. The landlord can demand rent from either of them, as they are jointly and severally liable.
Exception: If the apartment was solely in his name, he alone is responsible for rent and renovation costs upon moving out. However, landlords usually insist on the signatures of both partners when concluding the lease. This offers them greater security.
10. Tenants must renovate at least once
"I'm not painting twice," a tenant angrily declared when the landlord insisted on cosmetic repairs upon move-out. "After all, I took over the apartment unrenovated." However, this alone will hardly allow the departing tenant to avoid the unwelcome painting work.
What matters is what the rental agreement states. Within the standard periods of three, five, and seven years, the tenant can be obligated to carry out cosmetic repairs – it doesn't matter whether the apartment was renovated at the beginning.
This rule only applies, however, if the contractual provision is valid and not too rigid. If the clause in the lease reads as if the tenant must always paint upon moving out, regardless of the condition of the apartment, the clause is invalid. Consequently, the tenant is not obligated to paint, as the Federal Court of Justice has clarified in numerous rulings.
Contract clauses requiring tenants to renovate upon moving out or specifying paints and wallpapers for renovations during the tenancy are also invalid. Painting your apartment black might give your landlord a fright during a casual visit, but it doesn't violate the rulings of the Federal Constitutional Court in Karlsruhe.
Clauses that obligate tenants to use specific types and shades of paint or wallpaper during the tenancy have been regularly overturned by the German Federal Court of Justice (BGH), most recently in the summer of 2009. However, tenants who choose subtle colors for painting when moving out are on the safe side. If bright colors damage the wall structure or render the apartment unrentable, landlords can claim damages.
11. Rent increases with the price of oil
Everything is getting more expensive, landlords and tenants alike complain. Garbage collection fees, electricity, heating, and tradespeople's prices rise year after year. But is the landlord allowed to pass these increased costs on to the tenant? No!
The costs for sewage or heating oil are covered by the monthly utility prepayments. If these costs rise sharply during the year, the owner may not increase either the utility prepayment or the rent.
may only pass on the increased cost of living to the tenant with the annual statement of accounts.
The actual rent is distinct from the ancillary costs. It may only be increased within strict limits. If the landlord wishes to raise the rent to the level of the comparable rent, he must justify this either with the current rent index, three higher comparable rents, or an expert appraisal.
12. The hallway belongs to the apartment
Mud boots and smelly sneakers stink outside the apartment door, the weekly garbage regularly greets the neighbor next to his entrance: Anyone who thinks that's okay is sorely mistaken! Even if no one feels bothered and there is enough space, leaving objects in the entire stairwell is generally prohibited for fire safety reasons.
Argument: The space in front of the entrance is not included in the rental agreement and therefore does not belong to the tenant. However, it's not a problem if the tenant temporarily places a pair of shoes or an umbrella on the doormat. Reasonable landlords usually don't object if it doesn't detract from the overall appearance of the stairwell – they are not obligated to tolerate it. However, the courts have established an important exception: Strollers may be left in the stairwell if they don't obstruct the way. Walking aids or wheelchairs may also be left in front of the door if they don't cause any disturbance.
